FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID UPDIKE,

Plaintiff-Appellant,

v.

MULTNOMAH COUNTY, a municipal

corporation; STATE OF OREGON,

Defendants-Appellees,

and

CITY OF GRESHAM,

Defendant.

No. 15-35254

D.C. No.

3:13-cv-01619-

SI

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted June 7, 2017

Portland, Oregon

Filed August 31, 2017

Before: A. Wallace Tashima, Ronald M. Gould,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gould
2 UPDIKE V. MULTNOMAH COUNTY

SUMMARY*

Americans With Disabilities Act / Rehabilitation Act

The panel affirmed in part and reversed in part the 

district court’s summary judgment orders, and remanded, in 

a case in which David Updike, who has been deaf since birth, 

alleged that the State of Oregon and Multnomah County did 

not provide him with an American Sign Language interpreter 

at his arraignment on criminal charges, and that the County 

did not provide him with an ASL interpreter and other 

auxiliary aids in order for Updike to effectively 

communicate while he was in pretrial detainment and under 

pretrial supervision, in violation of Title II of the Americans 

with Disabilities Act and § 504 of the Rehabilitation Act.

The panel held that Updike lacks standing to pursue his 

claims for injunctive relief against the State because it is no 

more than speculation and conjecture that the State will not 

provide an ASL interpreter and auxiliary aids if Updike 

makes an appearance as a pretrial detainee again, and lacks 

standing to pursue his claims for injunctive relief against the 

County because the possibility of recurring injury remains 

speculative.

The panel affirmed the district court’s summary 

judgment in favor of the State on Updike’s claims under the 

ADA and § 504 because there is no evidence that the State’s 

failure to provide an ASL interpreter was the result of 

deliberate indifference.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UPDIKE V. MULTNOMAH COUNTY 3

The panel reversed the district court’s summary 

judgment in favor of the County on Updike’s ADA and 

§ 504 claims for damages. The panel held that a reasonable 

jury could find that the County was deliberately indifferent 

and violated Title II and § 504 when it did not conduct an 

informed assessment of Updike’s accommodation needs and 

did not give primary deference to Updike’s requests or 

context-specific consideration to his requests; and when 

County employees failed to provide Updike with an ASL 

interpreter in a multitude of interactions with County 

employees, did not offer use of a TTD, and did not turn on 

closed captioning.

COUNSEL

Carl L. Post (argued),John Burgess, and Daniel Snyder, Law 

Offices of Daniel J. Snyder, Portland, Oregon, for PlaintiffAppellant.

Jacqueline Kamins (argued), Assistant County Attorney; 

David N. Blankfeld, Multnomah County Attorney; Office 

of Multnomah County Attorney, Portland, Oregon; for 

Defendant-Appellee Multnomah County.

Peenesh Shah (argued), Assistant Attorney General; 

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, 

Attorney General; Oregon Department of Justice, Salem,

Oregon; for Defendant-Appellee State of Oregon.
4 UPDIKE V. MULTNOMAH COUNTY

OPINION

GOULD, Circuit Judge:

David Updike, who has been deaf since birth, uses 

American Sign Language (“ASL”) as his primary language. 

He brings this action against Defendants the State of Oregon 

(“State”) and Multnomah County (“County”), alleging that 

the State and the County did not provide him with an ASL 

interpreter at his arraignment on criminal charges, and that 

the County did not provide him with an ASL interpreter and 

other auxiliary aids in order for Updike to effectively 

communicate while he was in pretrial detainment and under 

pretrial supervision. Updike brings claims for violations of 

Title II of the Americans with Disabilities Act (“ADA”), 

42 U.S.C. §§ 12101–12213, and § 504 of the Rehabilitation 

Act, 42 U.S.C. §§ 701–796I, negligence, and false arrest. 

Updike appeals the district court’s grant of summary 

judgment to Defendants on all claims. We affirm in part, 

reverse in part, and remand this case for further proceedings.

I

A

David Updike has been deaf since birth and 

communicates primarily through ASL, which is his native 

language and preferred method of communication. Updike 

does not consider himself to be bilingual in English and does 

not read or speak English well. Updike is not proficient at 

reading lips because he has never heard English words—in 

these circumstances, it is difficult to know the shape that lips 

make to produce certain words. All of Updike’s friends are 

deaf and Updike’s ex-wife is deaf. Updike explains that he 

“live[s] in the deaf world.”
UPDIKE V. MULTNOMAH COUNTY 5

In the early afternoon of January 14, 2013, officers from 

the Gresham Police Department arrived at Updike’s home to 

respond to a 911 call reporting a disturbance. The 911 caller 

told the operator that the disturbance1 involved deaf 

individuals, but the officers did not bring an ASL interpreter 

with them. The officers arrested Updike and took him to 

Multnomah County Detention Center (“MCDC”) for 

booking.

MCDC has a telecommunications device for the deaf 

(“TDD”) available. MCDC staff, including corrections 

deputies and medical providers, can request an ASL 

interpreter as needed. The County has a contract with 

Columbia Language Services, Inc. to provide interpreting 

services, including “Interpretation for the Deaf,” 

“Interpretation for the Deaf/After Hours,” 

“Remote/Electronic Interpretation,” “Interpreter 

[Services]/Normal Hours/ASL,” and “Interpreter 

Services/After Hours/ASL.”

At MCDC, Updike signed for an ASL interpreter and a 

teletypewriter (“TTY”)2 and tried to speak the word 

“interpreter,” but was denied these requests. Instead, Officer 

Ozeroff showed Updike statements written by the other 

person involved in the disturbance and a witness, and wrote 

Updike a note asking Updike to write down what happened. 

Updike had trouble writing down what happened because 

written English is not his preferred form of communication. 

No ASL interpreter was provided.

 1 Updike explains that a deaf guest in his home assaulted him after 

he refused to give the guest money.

2 TDD and TTY are used interchangeably by Updike and throughout 

this opinion.
6 UPDIKE V. MULTNOMAH COUNTY

At booking, a female corrections office removed 

Updike’s handcuffs and spoke to Updike. Updike tried to 

read her lips and could not understand her statements. 

Deputy Kessinger, a booking deputy, completed Updike’s 

intake. Updike was also photographed and fingerprinted. 

Updike requested an ASL interpreter during the booking 

process but was not given one.

After booking, Updike was placed in a holding room. 

Updike saw other inmates making telephone phone calls, 

and he wanted to call an attorney and his mother. He asked 

a corrections officer for a TTY, by saying “TTY,” and 

motioned his hand to his ear to mime a telephone. The 

officer instructed Updike to sit down and gestured for 

Updike to sit down. Updike stated and signed “I need an 

interpreter,” but the officer did not respond to this request. 

Updike then spoke the word “paper” and made a writing 

gesture. The officer denied the request for paper and a 

writing instrument, and told Updike to sit down.

After the booking process, Updike again asked to use a 

TTY by gesturing typing and by making a verbal request to 

a different corrections officer. The officer denied the 

requests and instructed Updike to sit down and wait.

Still at MCDC, Updike met with Nurse Nielsen and 

asked for an ASL interpreter. Updike wanted to 

communicate that officers hurt his neck and back during the 

course of his arrest, but the nurse did not request or provide 

an interpreter despite his request. The nurse pointed to 

questions on a health intake form, but Updike could not read 

the form very well and used body language to answer the 

questions the best he could. The nurse did not examine his 

neck and back, and Updike could not communicate that 

those areas hurt.
UPDIKE V. MULTNOMAH COUNTY 7

Updike met with Recognizance Officer Iwamoto from 

Multnomah County Pretrial Services Program. Updike had 

trouble reading the officer’s lips and requested an ASL 

interpreter. The officer did not provide one. Updike also 

requested a TTY, but was not given one. Updike then 

learned that he would be held overnight and would appear in 

court the next day. Officer Iwamoto assured Updike that 

Iwamoto would notify the court that Updike would require 

an interpreter at his arraignment.

Officer Iwamoto’s practice is to communicate with deaf 

people in custody by writing notes. Officer Iwamoto 

testified that if Updike was again arrested, he would likely 

not be given an ASL interpreter for his recognizance 

interview, and that he believed this practice needed to 

change. Iwamoto stated that he felt that written 

communication was sufficient to complete Updike’s 

recognizance interview in order to make a release 

determination. Iwamoto’s summary of his interview with 

Updike noted that the interview was conducted by writing, 

but that Updike would “need a sign language interpreter for 

court.” This information became part of the court’s records, 

and went to the judge, the district attorney’s office, and the 

defense attorney. The information was also made available 

to pretrial release services. Iwamoto stated that he made this 

determination because arraignment occurred by video 

conference, and not because he himself had difficulties 

communicating with Updike by writing during the 

recognizance interview.

While at MCDC, Updike also met with Deputy 

Waggoner, a classification deputy. Waggoner’s notes said 

that Updike was deaf; this notation was made so corrections 

staff could give Updike accommodations, including getting 

the TTD machine for Updike to make phone calls. However, 
8 UPDIKE V. MULTNOMAH COUNTY

Deputy Waggoner did not call for an ASL interpreter during 

his triage interview with Updike because Waggoner did not 

think that Updike needed one and felt that Updike 

communicated fine using written English. Waggoner has 

never been trained on the necessary steps to obtain an 

interpreter for a deaf person during booking, and does not 

know how to get an ASL interpreter if he had trouble with a 

deaf inmate during a triage interview. Waggoner indicated 

in the Classification Summary Report that he believed

Updike read fine, but also noted that Updike answered “yes” 

to the question asking whether Updike had a disability that 

would impact his ability to understand instructions while 

detained.

During Updike’s time at MCDC, he was not given access 

to an ASL interpreter, a computer, a TTY, video relay 

services, or pen and paper. He could not call a lawyer or his 

family members without a TTY device. He was not able to 

watch television because there was no video relay service 

and no closed captioning.

On the evening of January 14, 2013, Updike was 

transferred to Multnomah County Inverness Jail (“MCIJ”). 

At MCIJ, an officer gave Updike a toothbrush, toothpaste, a 

comb, some blank paper and a pen, and a copy of MCIJ’s 

Inmate Manual. Updike wrote to the officer that his neck 

and back hurt, and he requested pain medication, but no 

medical provider examined Updike.

Updike remained at MCIJ from January 14 through 

January 16, 2013. He made many requests for a TTY so he 

could make phone calls, as he saw that other inmates were 

freely able to use telephones during their free time. He was 

denied these requests. Updike also wrote a note requesting 

that an officer turn on closed captioning, but that request was 

not honored. MCIJ uses a loudspeaker system to address 
UPDIKE V. MULTNOMAH COUNTY 9

inmates, but Updike did not hear any of the announcements 

made while at MCIJ.

On January 15, 2013, Updike appeared at his 

arraignment by video. MCIJ arranges arraignment by video, 

and inmates are not transported to court. During the 

arraignment, Updike could see but not read Judge Kathleen 

Dailey’s lips and noticed that an interpreter was not in the 

courtroom. Upon learning that Updike was deaf, Judge 

Dailey postponed Updike’s arraignment to the following day 

when an ASL interpreter would be available. Updike was 

thus held for another night at MCIJ.

The County’s Pretrial Release Office conducts pretrial 

release interviews, including an assessment of the language 

needs of an individual, such as whether an individual needs 

an ASL interpreter, or whether the individual requires some 

other accommodation for hearing loss. This information is 

transmitted to the staff of the Oregon Judicial Department 

(“OJD”) prior to arraignment. Updike’s pretrial release 

documents received by OJD employees noted that Updike 

required an ASL interpreter. If staff do not determine 

whether an interpreter is required, the issue is not addressed 

until the court appearance. Typically, OJD staff prepare for 

arraignments by looking only at the booking register and not 

by reviewing the pretrial release report. But if a booking 

register notes a need for an accommodation, OJD staff would 

take appropriate action. At some time after Updike’s 

arraignment, the County modified the format of the booking 

register so that the booking register notifies the court of a 

need for an accommodation. As a result of this change, OJD 

staff are now alerted that a person needs an ASL interpreter 

or a foreign language interpreter through the booking 

register.
10 UPDIKE V. MULTNOMAH COUNTY

On January 16, 2013, Updike again appeared in court by 

videoconference. An ASL interpreter was provided for 

Updike, and Updike was released that day. Updike again 

requested a corrections officer to supply him with a TTY so 

he could call for his daughter to pick him. He received a 

TTY for the first time, and left jail late that evening.

On January 17, 2013, Updike reported to pretrial 

supervision as ordered by Judge Dailey. Updike met with 

Michale Sacomano, a case manager for the Multnomah 

County Department of Community Justice’s Pretrial 

Services Program. Sacomano conducted intake by written 

communication, despite the fact that Updike did not agree to 

conduct intake by writing and had requested—by both 

signing and speaking—an ASL interpreter and signed 

requesting an ASL interpreter. Sacomano denied the 

request, and explained that Updike should write all of his 

requests.3 Updike had a series of miscommunications with 

Sacomano, and felt that Sacomano believed Updike used his 

hearing impairment as an excuse to violate conditions of his 

pretrial release.4

 3 Sacomano disputes whether Updike requested an ASL interpreter 

at this meeting. Because this is an appeal from the grant of summary 

judgment to Defendants, we construe the facts in the light most favorable 

to Updike as the non-moving party. See Olsen v. Idaho State Bd. of Med., 

363 F.3d 916, 922 (9th Cir. 2004).

4 Sacomano’s log entries noted that Updike’s case was dismissed, 

that Updike had poor reporting during his time with pretrial services, that 

Updike used his hearing impairment as the reason for not complying with 

the conditions of supervision, and that their interactions were 

challenging because Updike “argued” everything. The “hearing 

impaired, learning impaired, and developmentally disabled individuals 

engage in a range of coping mechanisms that can give the false 

impression of uncooperative behavior or lack of remorse.” Armstrong v. 
UPDIKE V. MULTNOMAH COUNTY 11

The trial on Updike’s criminal charge was postponed 

until April 22, 2013. After the jury was impaneled, the 

district attorney moved for dismissal.

B

On September 13, 2013, Updike filed his complaint, 

alleging claims against the City of Gresham, Multnomah 

County, and the State of Oregon. In early 2014, the City of 

Gresham settled. On June 1, 2014, Updike filed his first 

amended complaint. Updike brought several claims: ADA 

discrimination claims against the State and the County, 

violations of § 504 of the Rehabilitation Act against the State 

and the County, common law negligence against the State 

and the County, and false arrest against the County. He 

sought compensatory damages, injunctive relief, and 

attorneys’ fees and costs.

The State filed its motion for summary judgment on 

April 23, 2014, which the district court granted on October 

15, 2014. The County filed its motion for summary 

judgment on November 26, 2014, which the district court 

granted on March 24, 2015. The district entered final 

judgment on March 24, 2015.

Updike timely appealed. He does not challenge the grant 

of summary judgment on his negligence and false arrest 

claims.

 Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds 

by Johnson v. California, 543 U.S. 499, 504–05 (2005). As a result, it is 

likely that such individuals may have difficulty interacting with 

personnel who supervise them. Id. This is one basis that may explain 

why the interactions between Sacomano and Updike were challenging.
12 UPDIKE V. MULTNOMAH COUNTY

II

We have jurisdiction under 28 U.S.C. § 1291. We 

review de novo a district court’s grant of summary judgment. 

Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 

648 (9th Cir. 2016). On review, we determine—viewing the 

evidence in the light most favorable to Updike, the nonmoving party—whether there are any genuine issues of 

material fact and whether the district court correctly applied 

the relevant substantive law. Olsen v. Idaho State Bd. of 

Med., 363 F.3d 916, 922 (9th Cir. 2004); see Fed. R. Civ. P. 

56. “Summary judgment is improper if ‘there are any 

genuine factual issues that properly can be resolved only by 

a finder of fact because they may reasonably be resolved in 

favor of either party.’” Simo v. Union of Needletrades, 

Indus. & Textile Emps., 322 F.3d 602, 610 (9th Cir. 2003) 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 

(1986)). We review de novo the district court’s decision 

regarding standing. Fair Hous. of Marin v. Combs, 285 F.3d 

899, 902 (9th Cir. 2002).

III

Article III of the Constitution limits federal courts to 

hearing only cases and controversies. To establish standing 

to sue, a plaintiff must show: (1) an injury that is concrete 

and particularized and actual or imminent; (2) a causal 

connection between the injury and defendant’s challenged 

action; and (3) redressability. Lujan v. Defs. of Wildlife, 

504 U.S. 555, 560–61 (1992). Apart from this, standing for 

injunctive relief requires that a plaintiff show a “real and 

immediate threat of repeated injury.” O’Shea v. Littleton, 

414 U.S. 488, 496 (1974); see also City of Los Angeles v. 

Lyons, 461 U.S. 95, 107–08 (1983).
UPDIKE V. MULTNOMAH COUNTY 13

The parties do not dispute that Updike satisfies the 

general standing requirements of Article III,5 but instead 

dispute whether Updike has shown a real and immediate 

threat that the injury will be repeated—which is necessary 

for standing to seek injunctive relief.

A

Updike offers no evidence of a “real or immediate 

threat” that he would be “wronged again” by way of the 

State’s failure to provide an ASL interpreter at future court 

appearances. Lyons, 461 U.S. at 111. Evidence in the record 

further indicates that this wrongful conduct will likely not 

occur again, given that information about necessary 

accommodations are now noted in the booking registers—

the documents relied upon by OJD to set hearing dates—

rather than the pretrial release reports.

Updike has not met his burden of showing that the 

State’s allegedly wrongful behavior will likely recur. 

Moreover, Updike’s evidence is insufficient to establish that 

any such wrongful behavior is likely to recur against him, 

i.e., that he is likely again to be a pretrial detainee. Updike 

lacks standing to pursue his claims for injunctive relief 

against the State because it is no more than speculation and 

conjecture that the State will not provide an ASL interpreter 

 5 Nor could the County or State really dispute this: The State and 

County’s alleged failure to provide Updike with an ASL interpreter or 

the use of auxiliary services constitute concrete and particularized 

injuries sufficient to satisfy Article III. Further, Updike’s inability to 

effectively communicate with corrections staff or even communicate at 

all with his lawyer or family was caused by the Defendants’ failure to

provide him with accommodation and meaningful access. Finally, a 

decision favorable to Updike would redress his injuries. See Lujan, 

605 U.S. at 560–61.
14 UPDIKE V. MULTNOMAH COUNTY

and auxiliary aids if Updike makes an appearance as a 

pretrial detainee again. See id. at 103, 107–08.

B

Although certain facts slightly alter our calculus in 

considering the threat of future harm from the County, we 

also hold that the possibility of recurring injury remains 

speculative such that Updike also lacks standing to pursue 

injunctive relief against the County.

Updike has been booked at MCDC on five previous 

occasions, and avers that he had been held overnight in a 

Multnomah County detention facility before and was then 

denied an ASL interpreter and a TTY although he requested 

auxiliary aids and services. Record evidence also shows that 

a County officer had communicated with other deaf people 

in custody by writing notes, and that another County officer 

admitted to now knowing how to get an ASL interpreter if 

he had difficulties communicating with a deaf inmate.

Although “past wrongs are evidence bearing on whether 

there is a real and immediate threat of repeated injury,” 

O’Shea, 414 U.S. at 496, “past wrongs do not in themselves 

amount to [a] real and immediate threat of injury necessary 

to make out a case or controversy,” Lyons, 461 U.S. at 103. 

Updike’s past injury is insufficient to establish that the risk 

of recurring injury is more than speculative. He has not 

identified specific County policies and practices that would 

subject Updike to a realistic possibility that the County 

would subject him to the injurious acts again in the future. 

Compare id. at 108–110 (holding that the plaintiff did not 

have standing because it was no more than conjecture that 

he would be subject to another unconstitutional chokehold 

in the future), with Armstrong v. Davis, 275 F.3d 849, 864 

(9th Cir. 2001) (explaining that the California Board of 
UPDIKE V. MULTNOMAH COUNTY 15

Prison Term’s consistent practice of denying appropriate 

accommodations warranted holding that the plaintiff class 

established standing), abrogated on other grounds by 

Johnson v. California, 543 U.S. 499, 504–05 (2005). 

Further counseling against standing for injunctive relief is 

the assumption that Updike will likely conform his activities 

within the law such that he would not be arrested and 

detained in the future. See O’Shea, 414 U.S. at 497 (“We 

assume that respondents will conduct their activities within 

the law and so avoid prosecution and conviction as well as 

exposure to the challenged course of conduct said to be 

followed by petitioners.”). Updike has not shown “there is 

‘sufficient immediacy and reality’ to [his] allegations of 

future injury to warrant invocation” of jurisdiction. Id.

In sum, Updike does not have standing to pursue his 

claims for injunctive relief against the State and County. We 

turn next to the merits of his claims for compensatory 

damages.

IV

A

Updike challenges the district court’s grant of summary 

judgment in favor of the State and the County on his ADA 

and § 504 claims.

The ADA was enacted “to provide a clear and 

comprehensive national mandate for the elimination of 

discrimination against individuals with disabilities” and “to 

provide clear, strong, consistent, enforceable standards 

addressing discrimination against individuals with 

disabilities.” 42 U.S.C. § 12101(b)(1)&(2). Title II of the 

ADA provides:
16 UPDIKE V. MULTNOMAH COUNTY

[N]o qualified individual with a disability 

shall, by reason of such disability, be 

excluded from participation in or be denied 

the benefits of the services, programs, or 

activities of a public entity, or be subjected to 

discrimination by any such entity.

Id. § 12132. To prove that a public program or service 

violated Title II of the ADA, Updike must show that: “(1) he 

is a ‘qualified individual with a disability’; (2) he was either 

excluded from participation in or denied the benefits of a 

public entity’s services, programs, or activities, or was 

otherwise discriminated against by the public entity; and 

(3) such exclusion, denial of benefits, or discrimination was 

by reason of his disability.” Duvall v. Cty. of Kitsap, 260 

F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of 

reh’g en banc (Oct. 11, 2001). This provision extends to 

discrimination against inmates detained in a county jail. See

Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) 

(concluding that “[s]tate prisons fall squarely within the 

statutory definition of ‘public entity,’ which includes ‘any 

department, agency, special purpose district, or other 

instrumentality of a State or States or local government.’” 

(quoting 42 U.S.C. § 12131(1)(B))).

“Title II of the ADA was expressly modeled after § 504 

of the Rehabilitation Act.” Duvall, 260 F.3d at 1135. 

Section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with a 

disability . . . shall, solely by reason of her or 

his disability, be excluded from the 

participation in, be denied the benefits of, or 

be subjected to discrimination under any 
UPDIKE V. MULTNOMAH COUNTY 17

program or activity receiving Federal 

financial assistance . . . .

29 U.S.C. § 794. To bring a § 504 claim, Updike must show 

that “(1) he is an individual with a disability; (2) he is 

otherwise qualified to receive the benefit; (3) he was denied 

the benefits of the program solely by reason of his disability; 

and (4) the program receives federal financial assistance.” 

Duvall, 260 F.3d at 1135.

Title II and § 504 include an affirmative obligation for 

public entities to make benefits, services, and programs 

accessible to people with disabilities. See id. at 1136; Pierce 

v. District of Columbia, 128 F. Supp. 3d 250, 266–67 

(D.D.C. 2015) (citing 42 U.S.C. § 12131(2) and 28 C.F.R. 

§ 35.130(b)(1)(ii)), reconsideration denied, 146 F. Supp. 3d 

197 (D.D.C. 2015).

As to persons with a hearing disability, implementing 

regulations for Title II provide that a public entity must “take 

appropriate steps to ensure that communications” with 

disabled persons “are as effective as communications with 

others.” 28 C.F.R. § 35.160(a). These regulations, squarely 

on point here, provide:

(b) (1) A public entity shall furnish 

appropriate auxiliary aids and services where 

necessary to afford individuals with 

disabilities, including applicants, 

participants, companions, and members of 

the public, an equal opportunity to participate 

in, and enjoy the benefits of, a service, 

program, or activity of a public entity.

(2) The type of auxiliary aid or service 

necessary to ensure effective communication 
18 UPDIKE V. MULTNOMAH COUNTY

will vary in accordance with the method of 

communication used by the individual; the 

nature, length, and complexity of the 

communication involved; and the context in 

which the communication is taking place. In 

determining what types of auxiliary aids and 

services are necessary, a public entity shall 

give primary consideration to the requests of 

individuals with disabilities. In order to be 

effective, auxiliary aids and services must be 

provided in accessible formats, in a timely 

manner, and in such a way as to protect the 

privacy and independence of the individual 

with a disability.

Id. § 35.160(b). For deaf and hearing-impaired persons, 

auxiliary aids and services include:

Qualified interpreters on-site or through 

video remote interpreting (VRI) services; 

notetakers; real-time computer-aided 

transcription services; written materials; 

exchange of written notes; telephone handset 

amplifiers; assistive listening devices; 

assistive listening systems; telephones 

compatible with hearing aids; closed caption 

decoders; open and closed captioning, 

including real-time captioning; voice, text, 

and video-based telecommunications 

products and systems, including text 

telephones (TTYs), videophones, and 

captioned telephones, or equally effective 

telecommunications devices; videotext 

displays; accessible electronic and 

information technology; or other effective 
UPDIKE V. MULTNOMAH COUNTY 19

methods of making aurally delivered 

information available to individuals who are 

deaf or hard of hearing[.]

Id. § 35.104(1).

The Appendix to the ADA regulations also makes clear 

that the public entity has a duty to ensure effective 

communications and establishes a required deference that 

must normally be given to a disabled person’s personal 

choice of aid and service:

The public entity shall honor the choice [of 

the individual with a disability] unless it can 

demonstrate that another effective means of 

communication exists or that use of the 

means chosen would not be required under 

§ 35.164. Deference to the request of the 

individual with a disability is desirable 

because of the range of disabilities, the 

variety of auxiliary aids and services, and 

different circumstances requiring effective 

communication.

Id. pt. 35, App. A (alteration in original) (quoting 28 C.F.R. 

pt. 35, App. A (2009)). The Appendix goes on to explain 

that “the type of auxiliary aid or service necessary to ensure 

effective communication will vary with the situation.” Id. 

These regulations “require effective communication in 

courts, jails, prisons, and with law enforcement officers.” Id.

One limitation on this duty, however, provides that a 

public entity is not required “to take any action that it can 

demonstrate would result in a fundamental alteration in the 

nature of a service, program, or activity or in undue financial 

and administrative burdens.” Id. § 35.164; see also id. pt. 
20 UPDIKE V. MULTNOMAH COUNTY

35, App. A. Yet the mere payment for an ASL interpreter 

and the payment for a TTY or similar device cannot be 

considered an undue burden.

Under both Title II of the ADA and § 504 of the 

Rehabilitation Act, Updike must show that he was excluded 

from participating in or denied the benefits of a program’s 

services or otherwise discriminated against. 

“[C]ompensatory damages are not available under Title II or 

§ 504 absent a showing of discriminatory intent.” Ferguson 

v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998), as 

amended (Oct. 8, 1998); see Duvall, 260 F.3d at 1138. To 

show intentional discrimination, this circuit requires that the 

plaintiff show that a defendant acted with “deliberate 

indifference,” which requires “both knowledge that a harm 

to a federally protected right is substantially likely, and a 

failure to act upon that . . . likelihood.” Duvall, 260 F.3d at 

1139. “When the plaintiff has alerted the public entity to his 

need for accommodation (or where the need for 

accommodation is obvious, or required by statute or 

regulation), the public entity is on notice that an 

accommodation is required, and the plaintiff has satisfied the 

first element of the deliberate indifference test.” Id. To meet 

the second prong, the entity’s failure to act “must be a result 

of conduct that is more than negligent, and involves an 

element of deliberateness.” Id.

A public entity may be liable for damages under Title II 

of the ADA or § 504 of the Rehabilitation Act “if it 

intentionally or with deliberate indifference fails to provide 

meaningful access or reasonable accommodation to disabled 

persons.” Mark H. v. Lemahieu, 513 F.3d 922, 937–38 (9th 

Cir. 2008). The “failure to provide reasonable 

accommodation can constitute discrimination.” Vinson v. 

Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). A public 
UPDIKE V. MULTNOMAH COUNTY 21

entity may not disregard the plight and distress of a disabled 

individual.

The parties do not dispute that Updike is a qualified 

individual with a disability and that, as a detainee at the 

detention facility, he was otherwise qualified to receive the 

services and benefits of the public entity. Instead, the parties 

dispute whether Updike was intentionally discriminated 

against when his requested accommodations were denied or 

when accommodation was not provided. Because Updike’s 

ADA and § 504 claims do not differ in any respect relevant 

to resolving this appeal, and no party asserts that any 

distinctions are material, we address the ADA and § 504 

claims together. See Duvall, 260 F.3d at 1135–36.

B

The thrust of Updike’s allegations against the State is 

that the State failed to arrange for an ASL interpreter at 

Updike’s first criminal court appearance. As a result, 

Updike had to stay at MCIJ for an additional evening, and 

he complains that he could have been released earlier if an 

ASL interpreter had been provided on January 15, 2013, the 

date of his first arraignment hearing. The district court 

concluded that Updike did not show that the State acted with 

deliberate indifference. The State gave evidence that in 

setting Updike’s arraignment, it reviewed the booking 

register, which did not note his need for an interpreter, but 

not the pretrial release report, which did note Updike’s need 

for an interpreter.

Updike relies on Robertson v. Las Animas County 

Sheriff’s Department, 500 F.3d 1185, 1199 (10th Cir. 2007) 

and Chisolm v. McManimon, 275 F.3d 315, 330 (3d Cir. 

2001) to argue that he was denied the ability to participate at 

the January 15, 2013 arraignment. Both cases involved deaf 
22 UPDIKE V. MULTNOMAH COUNTY

or hearing impaired individuals who made court appearances 

without ASL interpreters. But neither out-of-circuit case 

discussed our circuit’s heightened requirement for a plaintiff 

to establish that the discrimination was committed with 

deliberate indifference in order to recover monetary 

damages under the ADA or § 504. See Duvall, 260 F.3d at 

1138–39. We have explained deliberate indifference as 

follows:

Because in some instances events may be 

attributable to bureaucratic slippage that 

constitutes negligence rather than deliberate 

action or inaction, we have stated that 

deliberate indifference does not occur where 

a duty to act may simply have been 

overlooked, or a complaint may reasonably 

have been deemed to result from events 

taking their normal course. Rather, in order 

to meet the second element of the deliberate 

indifference test, a failure to act must be a 

result of conduct that is more than negligent, 

and involves an element of deliberateness.

Id. at 1139.

We conclude that the district court correctly granted 

summary judgment for the State on this issue. This case 

reflects an absence of effective communication and 

coordination between the County’s pretrial services and 

employees at OJD about the need for an interpreter at 

Updike’s arraignment. While it is regrettable that it appears 

that Updike spent an extra night in jail that he likely would 

not have had to spend had he been provided an ASL 

interpreter the first time he appeared before Judge Dailey, 

there is no evidence that the State deliberately failed to order 
UPDIKE V. MULTNOMAH COUNTY 23

an interpreter at the January 15, 2013 arraignment. Instead, 

the evidence shows “bureaucratic slippage that constitutes 

negligence rather than deliberate action or inaction.” Id. 

Since Updike’s first arraignment, the County and State have 

reviewed their procedures and taken the appropriate 

corrective action, such that this “bureaucratic slippage” is 

likely to be avoided in the future. Similarly, pretrial services 

has modified their procedures such that the booking register 

now provides the necessary notice for accommodations.

There is no evidence that the State’s failure to provide an 

ASL interpreter was the result of deliberate indifference. We 

accordingly affirm the district court’s holding that summary 

judgment in favor of the State is appropriate on Updike’s 

claims under the ADA and § 504.

C

Along with alleging that the County failed to arrange for 

an ASL interpreter at Updike’s arraignment, Updike alleges 

that the County did not provide him with an ASL interpreter 

and other auxiliary aids in order to effectively communicate 

while he was in pretrial detainment and under pretrial 

supervision. The district court held that Updike could have, 

but did not, provide the County notice of this conduct that 

allegedly violated the ADA and § 504 and that summary 

judgment was warranted on this ground. The district court, 

however, went on to review Updike’s allegations and found 

that there was no evidence in the record creating a genuine 

issue as to whether the County intentionally violated the 

ADA or the Rehabilitation Act. As to Updike’s ADA and 

§ 504 claims for damages against the County, we reverse.
24 UPDIKE V. MULTNOMAH COUNTY

1

“Federal Rule of Civil Procedure 8(a)(2) requires that the 

allegations in the complaint ‘give the defendant fair notice 

of what the plaintiff’s claim is and the grounds upon which 

it rests.’” Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 

963, 968 (9th Cir. 2006) (quoting Swierkiewicz v. Sorema 

N.A., 534 U.S. 506, 512, (2002)). “[S]ummary judgment is 

not a procedural second chance to flesh out inadequate 

pleadings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 

435 F.3d 989, 992 (9th Cir. 2006).

The district court found that Updike raised several 

specific factual allegations in his declaration opposing the 

County’s motion for summary judgment, submitted after the 

close of discovery, that were not previously raised in his 

complaint, including:

Plaintiff’s requests: (1) for an auxiliary aid to 

make telephone calls; (2) for an ASL 

interpreter to speak with Nurse Julie Nielson; 

(3) for closed captioning to be turned on for 

the [j]ail televisions; and (4) for an ASL 

interpreter for his meetings with pre-trial 

services.

The district court concluded that Updike’s failure to provide 

the County with adequate notice of additional allegations 

warranted summary judgment on Updike’s ADA and § 504 

claims on these allegations.

We disagree. Although the primary focus of Updike’s 

complaint was on the ASL interpreter that was not provided 

at his arraignment on January 15, 2013, Updike’s complaint 

gave sufficient factual allegations describing the County’s 

failure to provide auxiliary aids and services while Updike 
UPDIKE V. MULTNOMAH COUNTY 25

was detained and under pretrial supervision to put the 

County on notice that those inactions would be at issue. For 

example, Updike’s complaint stated that while Updike was 

at MCDC he requested an ASL interpreter and a TTY but 

neither was provided. He further alleged that he was 

directed to write a statement without the accommodations of 

a TTY or an ASL interpreter. The complaint went on to 

allege that the County did not provide Updike with an ASL 

interpreter while he was held at MCIJ.

His complaint also alleged that while he awaited trial, he 

was under the supervision of employees of the County. He 

had requested an ASL interpreter to aid his communication, 

but the County did not accommodate this request. Updike 

repeated these allegations throughout his complaint:

Defendant County denied Plaintiff the 

benefits of Defendant’s services and 

programs through failure to provide an ASL 

interpreter and failure to promptly provide a 

TTD while Plaintiff was in custody. 

Defendant County also failed to provide an 

ASL interpreter during Plaintiff’s pretrial 

release while he was under the supervision of 

Defendant County’s employees.

The complaint specifically alleged that the County 

denied Updike “effective communication by refusing to 

provide him with a qualified interpreter in circumstances 

involving the following types of communication which 

would be normal in criminal investigations and the arrest of 

a suspect.” These circumstances included:

explaining to the police the details of the 

incident and the alleged crime; discussing 

injuries; discussing damage to and loss of 
26 UPDIKE V. MULTNOMAH COUNTY

personal property; conveying and 

understanding one’s rights as a crime victim; 

conveying and understanding one’s rights as 

an arrestee and pretrial detainee; asserting the 

right to effective communication during

booking and being held by a jail or 

correctional facility; asserting the right to an 

ASL interpreter for appearances in court; and 

asserting the right to effective 

communication with supervising County 

employees during pretrial release.

Updike complied with the notice pleading requirement 

of Federal Rule of Civil Procedure 8. Updike alleged 

sufficient facts that the County did not accommodate his 

requests for an auxiliary aid to make telephone calls or for 

an ASL interpreter while in custody, such that the County 

should have been “on notice of the evidence it need[ed] to 

adduce in order to defend against [Updike’s] allegations.” 

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 

2000). Coupled with Updike’s deposition testimony, the 

County was put on notice of the evidence it would need to 

defend against Updike’s ADA and Rehabilitation Act 

claims. See id.

2

The district court also granted summary judgment on the 

alternative ground that there was insufficient evidence of 

intentional discrimination by the County against Updike.

The County argues that not providing Updike with his 

preferred form of communication is not, by itself, a violation 

of the ADA or the Rehabilitation Act. The County 

emphasizes that each of the County employees believed 

Updike could effectively communicate without the use of an 
UPDIKE V. MULTNOMAH COUNTY 27

ASL interpreter or TTD/TTY device. Whether Updike 

could effectively communicate in English is disputed as 

Updike avers that ASL is his primary language, he does not 

consider himself to be bilingual in English, he does not read 

or speak English well, and he is not proficient at reading lips. 

He contends that he was not able to communicate effectively 

with correctional staff because they did not provide 

appropriate accommodations. Other disputes central to this 

case include whether the County undertook “a fact-specific 

investigation to determine what constitutes a reasonable 

accommodation,” Duvall, 260 F.3d at 1139, and gave 

“primary consideration” to Updike’s requests, 28 C.F.R. 

§ 35.160(b)(2).

It is well-settled that Title II and § 504 “create a duty to 

gather sufficient information from the [disabled individual] 

and qualified experts as needed to determine what 

accommodations are necessary.” Duvall, 260 F.3d at 1139 

(alteration in original) (quoting Wong v. Regents of the Univ. 

of Cal., 192 F.3d 807, 818 (9th Cir. 1999)). Thus, a public 

entity “must consider the particular individual’s need when 

conducting its investigation into what accommodations are 

reasonable.” Id. As explained above, to meet the deliberate 

indifference test for compensatory damages, the public 

entity must be on notice that an accommodation is required, 

and that the entity’s failure to act involved an element of 

deliberateness. Id. A denial of a request without 

investigation is sufficient to survive summary judgment on 

the question of deliberate indifference. See id. at 1140 

(“[Plaintiff] provided sufficient evidence to create a triable 

issue as to whether [defendants] . . . had notice of his need 

for the accommodation involved and that they failed despite 

repeated requests to take the necessary action.”). Here, there 

is no dispute that County employees were aware of Updike’s 

disability. There is also no record evidence that the County 
28 UPDIKE V. MULTNOMAH COUNTY

properly investigated Updike’s need for accommodation. 

We reverse the district court’s grant of summary judgment 

on the ground that the County’s failure to provide 

accommodations proceeded without conducting an adequate 

investigation of Updike’s disability and the efficacy of other 

ways to communicate.

We also reverse the district court’s grant of summary 

judgment on the ground that there are disputed issues of 

material fact as to whether, at each of Updike’s requests for 

accommodation, the County’s failure to provide an 

accommodation was done with deliberate indifference, 

rather than merely negligence.6

These are the individual bases for Updike’s ADA and 

§ 504 claims:

Failure to provide an ASL interpreter or TTY during 

the booking process: During the booking process, Updike 

requested an ASL interpreter and also requested a TTY 

device so he could make phone calls to his attorney and his 

mother. The district court dismissed this aspect of Updike’s 

 6 Updike also contends that an inmate with a communication-related 

disability “often lacks the ability to communicate his need for 

accommodation.” See, e.g., Pierce, 128 F. Supp. 3d at 269 (“[Defendant] 

does not explain how inmates with known communications-related 

difficulties (such as [Plaintiff]) are supposed to communicate a need for 

accommodations, or, for that matter, why the protections of Section 504 

and Title II should be construed to be unavailable to such disabled 

persons unless they somehow manage to overcome their 

communications-related disability sufficiently enough to convey their 

need for accommodations effectively.”). Our case law is clear on this 

point: there may be situations where a public entity’s duty to look into 

and provide a reasonable accommodation may be triggered when “the 

need for accommodation is obvious,” and the public entity is on notice 

about a need for accommodation. Duvall, 260 F.3d at 1139.
UPDIKE V. MULTNOMAH COUNTY 29

claim, explaining that Updike did not explain how the 

booking process would have been different in any material 

respect had he been provided with his preferred 

accommodation. This analysis, however, disregards the 

County’s affirmative obligations to provide reasonable 

accommodations. Employees for the County were aware 

that Updike was deaf, and that Updike had requested an ASL 

interpreter and other auxiliary services. Furthermore, the 

County has a contract with Columbia Language Services for 

interpreting services. Taken together, a reasonable trier of 

fact could conclude that the County acted with deliberate 

indifference in denying a reasonable accommodation. See

id. at 1136; Wong, 192 F.3d at 819 (explaining that the denial 

of a request for accommodation “without consulting 

[plaintiff] or any person at the University whose job it was 

to formulate appropriate accommodations” was “a 

conspicuous failure to carry out the obligation 

‘conscientiously’ to explore possible accommodations”). A 

reasonable jury could conclude that an accommodation, such 

as an ASL interpreter or use of a TTY, was necessary for 

effective communication during the booking process.

Failure to provide a TTD to make phone calls: Updike 

made many requests for corrections staff to provide him with 

a TTD or TTY device so he could call his mother or an 

attorney but avers that no such aid was ever provided. As 

the district court noted, the parties do not dispute that a TTY 

machine was available for inmates to use for telephone calls, 

and that Updike was never provided with a TTY machine 

until after the January 16, 2013 arraignment when he was 

released from custody. The district court reasoned that 

Updike failed to present any evidence that the County 

actually refused to provide him with a TTY machine. We 

disagree with the district court’s conclusion that the County 

did not act with deliberate indifference in denying the 
30 UPDIKE V. MULTNOMAH COUNTY

request for a TTD or TTY. That Updike repeatedly 

requested a TTD, which was physically available at the jail, 

but was never provided such a device to assist making phone 

calls is evidence that the County denied him use of a TTD, 

creating a genuine issue of material fact on this issue. A trier 

of fact could conclude that the County acted with deliberate 

indifference in denying direct requests for this 

accommodation, which would permit Updike to use 

telephones, a service routinely made available to non-deaf

inmates.

Failure to turn on closed captioning on jail 

televisions: Updike asked MCDC officials to turn on closed 

captioning several times while in the custody of the County, 

but avers this request was not accommodated. Although the 

district court attributed this to an “unintentional oversight,” 

Updike has introduced evidence that County jail employees 

were aware of Updike’s disability, yet ignored his repeated 

requests to turn on closed captioning. Again, there is a 

genuine factual dispute on deliberate indifference.

Failure to provide an ASL interpreter during his 

medical evaluation: Under Updike’s evidence, which 

should be credited on summary judgment, Updike requested 

an ASL interpreter while meeting with Nurse Nielsen, and 

could not convey that he had neck and back pain because of 

an inability to communicate. He also explained that he could 

not read well the form the nurse used and that he could not 

respond or give input. Although the County asserts that 

Updike was very literate, and that an accommodation 

through writing was sufficient to comply with the ADA, the 

County has not put forth evidence showing that it looked into 

whether his request for accommodation could be granted 

without undue burden. Further, Updike disputes that the 

method of communication through writing was effective.
UPDIKE V. MULTNOMAH COUNTY 31

The district court dismissed this claim because there was 

no evidence in the record that Updike was denied any 

specific benefit or service that is regularly offered to other 

inmates. The lack of an ASL translator, however, may have 

denied Updike the opportunity to communicate effectively 

during the medical evaluation provided by the County. 

Medical evaluations often will be the type of complex and 

lengthy situation in which an ASL interpreter should be 

provided. See Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir. 

1996) (“[A] qualified interpreter may be necessary when the 

information being communicated is complex, or is 

exchanged for a lengthy period of time.” (quoting 28 C.F.R. 

pt. 35, App.); 28 C.F.R. § 35.160(b)(2) (“The type of 

auxiliary aid or service necessary to ensure effective 

communication will vary in accordance with the method of 

communication used by the individual; the nature, length, 

and complexity of the communication involved; and the 

context in which the communication is taking place.”). A 

trier of fact can weigh these factors in deciding whether 

written communication, rather than an ASL translator, was 

an appropriate accommodation.

Failure to provide an ASL interpreter during the 

recognizance interview: During Updike’s recognizance 

interview, he requested an ASL interpreter and a TTY 

device, was not given either, and Updike said that he had 

difficulty reading the officer’s lips. Officer Iwamoto 

disputed this, believing that he was able to communicate 

effectively with Updike through written English and that 

Updike communicated clearly through written notes. But 

again, the County introduced no evidence that it ascertained 

what accommodations might be needed, and instead relies 

on self-serving observations that its employees believed they 

were effectively communicating with Updike. Whether the 

County’s accommodation was sufficient requires sifting 
32 UPDIKE V. MULTNOMAH COUNTY

through a number of facts. See 28 C.F.R. § 35.160(b)(2). 

And here too, a reasonable jury could conclude that written 

communication was not adequate to ensure that Updike 

could communicate as effectively as non-hearing-impaired 

individuals or that the County provided the appropriate 

accommodation.

Failure to provide an ASL interpreter and other 

auxiliary aids during interactions with pretrial services: 

Updike and Sacomano dispute whether Updike requested an 

interpreter. Although the record shows that Sacomano was 

aware that Updike is deaf, the County did not put forward 

evidence that she looked into providing Updike with an ASL 

interpreter during their meetings. The district court focused 

on whether Updike was actually denied services or whether 

his interactions “actually caused him harm” in dismissing 

this aspect of Updike’s claim. The district court should have 

instead focused on whether Updike could effectively 

communicate with Sacomano while under supervision of the 

County and whether the County gave Updike reasonable

accommodations. Considering the evidence in the light most 

favorable to Updike, a reasonable jury could conclude that 

Sacomano did not adequately address Updike’s need for 

accommodation.

Failure to timely arrange for an ASL interpreter at 

arraignment: Updike inquired with County staff whether 

an ASL interpreter would be available at arraignment, yet no 

interpreter appeared at his January 15, 2013 arraignment. 

The County, however, timely communicated Updike’s need 

for an ASL interpreter before his January 15 arraignment by 

noting it in his pretrial release report. That OJD staff looked 

at the booking register but not the pretrial release report in 

setting calendar, does not show that the County was 

deliberately indifferent to Updike’s need for an ASL 
UPDIKE V. MULTNOMAH COUNTY 33

interpreter. As discussed earlier, this sequence of events 

shows “bureaucratic slippage that constitutes negligence 

rather than deliberate action or inaction.” Duvall, 260 F.3d 

at 1139. Summary judgment was appropriate on this facet 

of Updike’s claim.

* * *

The County’s employees knew that Updike was deaf but 

did not provide Updike with an ASL interpreter, TTY 

device, or closed captioning for television, despite his 

repeated requests for these accommodations. Updike put 

forth evidence that he made repeated requests for an ASL 

translator and other auxiliary services with respect to various 

aspects of his time in custody and under pretrial supervision. 

The County was also on notice that Updike believed that his 

disability would impact his ability to understand instructions 

while detained. Updike contends that the County’s failure 

to provide auxiliary aids and services limited his ability to 

communicate effectively, speak with his attorney and family 

members, and enjoy other programs and services on par with

non-hearing impaired inmates.

Updike disputes the County’s assertion that he was able 

to communicate fine using pen and paper, and instead 

contends that communication between him and corrections 

staff during the course of his detention and supervision were 

ineffective. Even if a jury ultimately determines that the 

County is correct—a matter that must be left to the jury 

where, as here, there are disputes of material fact—summary 

judgment was improper because the County never 

meaningfully assessed Updike’s limitations and 

comprehension abilities. At no time was Updike assessed to 

determine to what extent he would need accommodation to 

ensure that he could communicate effectively with others 

during his time in custody and under pretrial supervision. 
34 UPDIKE V. MULTNOMAH COUNTY

Yet “[w]hen an entity is on notice of the need for 

accommodation, it ‘is required to undertake a fact-specific 

investigation to determine what constitutes a reasonable 

accommodation.’” A.G. v. Paradise Valley Unified Sch. 

Dist. No. 69, 815 F.3d 1195, 1207 (9th Cir. 2016) (quoting 

Duvall, 260 F.3d at 1139). Nor did the County present 

evidence that it engaged in any inquiry as to why an ASL 

interpreter or TTY would be unreasonable or could not be 

accommodated.7 The record sets forth that it was not until 

his January 16, 2013 arraignment that Updike was provided 

with an ASL interpreter, and that it was not until Updike was 

released from custody that he was provided with a TTD. For 

these reasons, the district court erred in granting summary 

judgment in favor of the County on Updike’s ADA and 

§ 504 claims.

The district court, in granting summary judgment in 

favor of the County, concluded that Updike was not actually 

excluded from services that similarly-situated non-deaf 

individuals also accessed. We emphasize, however, that a 

public entity can be liable for damages under Title II and 

§ 504 if it intentionally or with deliberate indifferences does 

not provide a reasonable accommodation to a deaf or 

hearing-impaired person. See Duvall, 260 F.3d 1138–39; 

Mark H., 513 F.3d at 938.

In reversing the grant of summary judgment in favor of 

the County on Updike’s claims for damages, we do not hold 

that Updike necessarily was entitled to have an ASL 

 7 The County makes no argument that providing Updike with an 

interpreter or providing other auxiliary services, such as a TTD, would 

have been unduly burdensome. Nor would this argument have much 

weight, given their existing contract with Columbia Language Services 

to provide those in custody with ASL interpreter services.
UPDIKE V. MULTNOMAH COUNTY 35

interpreter as a matter of course to achieve effective 

communication with County employees or that the County 

should be subject to liability for failing to provide one. 

However, whether the County provided appropriate 

auxiliary aids where necessary is a fact-intensive exercise. 

Upon notice of the need for an accommodation, a public 

entity must investigate what constitutes a reasonable 

accommodation. See Duvall, 260 F.3d at 1139. Regulations 

require that public entities give primary consideration to the 

requests of the deaf individual with respect to auxiliary aid 

requests and give deference to such requests. 28 C.F.R.

§ 35.160(b)(2). And the type of auxiliary aid or service that 

will be appropriate should take into account the context in 

which the communication is taking place. Id. If the public 

entity does not defer to the deaf individual’s request, then the 

burden is on the entity to demonstrate that another effective 

means of communication exists or that the requested 

auxiliary aid would otherwise not be required. See 28 C.F.R. 

pt. 35, App. A. A public entity must “take appropriate steps 

to ensure that communications” with a person with a 

disability is “as effective as communications with others.” 

Id. § 35.160(a)(1). To deny a deaf person an ASL 

interpreter, when ASL is their primary language, is akin to 

denying a Spanish interpreter to a person who speaks 

Spanish as their primary language. An ASL interpreter will 

often be necessary to ensure communication with a deaf 

person who has become enmeshed in the criminal justice 

system. At a minimum, officials must conduct an adequate 

investigation into what accommodations may be necessary 

to permit effective communication of the deaf while 

incarcerated.

In this case, a reasonable jury could find that the County 

was deliberately indifferent and violated Title II and § 504

when it did not conduct an informed assessment of Updike’s 
36 UPDIKE V. MULTNOMAH COUNTY

accommodation needs, when it did not give primary 

deference to Updike’s requests or context-specific 

consideration to his requests, when County employees failed 

to provide Updike with an ASL interpreter in a multitude of 

interactions with County employees, when County 

employees did not offer use of a TTD, and when County 

employees did not turn on closed captioning. Thus, we 

reverse the district court’s holding that no evidence in the 

record created a genuine issue of material fact on whether 

the County violated the ADA or the Rehabilitation Act by 

inaction and conduct undertaken with deliberate indifference 

to Updike’s legitimate needs as a deaf individual. Stated 

another way, the County may not turn a blind eye to a deaf 

ear. Whether it has done so here cannot be resolved at this 

stage of the proceedings before the consideration of relevant 

testimony and other evidence that may be offered at trial, and 

before a jury or the district court has made findings of fact 

based on trial proceedings. We reverse the grant of summary 

judgment in favor of the County on Updike’s compensatory 

claims under Title II of the ADA and § 504 of the 

Rehabilitation Act. On the genuine factual disputes that we 

have identified, the case should proceed to trial.

V

We affirm in part and reverse in part the district court’s 

summary judgment orders. We affirm the district court’s 

grant of summary judgment in favor of the State. We also 

affirm the district court’s conclusion that Updike lacks 

standing to pursue his claims for injunctive relief. We 

reverse the district court’s grant of summary judgment in 

favor of the County on Updike’s ADA and § 504 claims for 

compensatory damages. We remand the case for further 

proceedings consistent with this opinion.
UPDIKE V. MULTNOMAH COUNTY 37

AFFIRMED in part; REVERSED in part; and 

REMANDED. Each party shall bear its own costs on appeal 

of the summary judgment order entered in favor of the State. 

We award costs to Updike on appeal of the summary 

judgment order entered in favor of the County.